§ 236 — Abandonment or change of route; new commissioners; their powers and proceedings

§ 236. Abandonment or change of route; new commissioners; their powers\nand proceedings. Any corporation heretofore organized or hereafter to be\norganized under this article, its successor or assigns, which shall have\nconstructed or put in operation a railroad upon a part and not upon the\nwhole of the route fixed, determined and located for such railroad by a\nboard of commissioners, may at any time apply for authority to abandon\nany portion of the route upon which the railroad shall not have been\ntheretofore constructed or shall not then be in operation, with or\nwithout a change and relocation of such portion, and with or without\nextension of the portion not abandoned, or of any part thereof. Such\napplication shall be made by petition in writing, addressed by such\ncorporation to the board of supervisors of the county in which such\nportion of the route so desired to be changed or abandoned shall be\nsituated, which is not within the limits of any city, or if such route,\nor any part thereof, shall be within the limits of a city, to the mayor\nof the city, for the route or portion thereof within such city. Five\ncommissioners may be appointed pursuant to such an application as\nhereinafter provided, who shall be residents of the county or city and\nwho shall have full power as herein provided. When such application is\nmade by a corporation heretofore organized such commissioners may be\nappointed within thirty days after presentation of the same by such\nboard of supervisors, or, as the case may be, by such mayor. When such\napplication is made by a corporation hereafter to be organized under\nthis article, such board of supervisors, or, as the case may be, such\nmayor, may within thirty days after presentation of such application,\nindorse thereon their or his approval and direction that it may be\npresented to the supreme court in the manner provided in section two\nhundred and twenty of this article, and such court may thereupon appoint\nsuch commissioners. Within ten days after his appointment each\ncommissioner so appointed shall take, subscribe and file the oath and\ngive and file the bond prescribed by section two hundred and twenty-one\nof this article; and if any one so appointed shall not comply with this\nrequirement, he shall be deemed to have declined to accept such\nappointment, and to have made a vacancy which the appointing power shall\nfill by another appointment as herein provided. Within fifteen days\nafter such appointments shall have been so made, the commissioners shall\nmeet at some convenient place in such county and complete their\norganization as a board with appropriate officers. Such board shall have\nall the authority conferred by law upon commissioners appointed, or\nauthorized to be appointed under this article. Before proceeding to hear\nthe application of the corporation, the board shall give such public\nnotice as it may deem most proper and effective of the time and place of\nthe hearing. Within thirty days after completing their organization such\nboard shall hear the application of the corporation, and all parties who\nmay be interested therein, and within sixty days after their\norganization they shall determine whether any part of such route should\nbe authorized to be abandoned, or should be changed and relocated with\nor without extension or extensions. If the board shall determine that no\nabandonment of any part of the route should be allowed, and that no\nchange and relocation of any part thereof should be effected, and that\nno extension should be made, the board shall dismiss the application.\nIf the board shall determine that an abandonment of any portion of the\nroute should be allowed, or that any change therein or extension thereof\nshould be made, the board shall proceed to authorize and require the\nsame upon such conditions as to the board shall seem proper, and with or\nwithout extension of the remainder of the route or of any part thereof,\nby fixing, determining and locating the route or routes of the extension\nor extensions, if any, and by directing the abandonment of the part of\nthe route theretofore located, but by the board allowed to be abandoned,\nif any, and by fixing, determining and relocating the part of the route\ntheretofore located, but by the board changed, if any; and the board\nshall cause to be made in duplicate a survey and map of the route as so\nchanged and fixed, determined and located. Neither such corporation nor\nany assign or successor thereof shall thereafter have any authority, by\nreason of anything done under this article, to operate or construct any\nrailroad upon any portion of the route by the board so required to be\nabandoned. The board shall also fix and determine the time within which\nthe railroad by it authorized and required upon any portion of the route\nso changed, shall be reconstructed and ready for operation. If the\nrailroad on any portion of the route not by the board changed or allowed\nto be abandoned, shall not have been theretofore constructed and made\nready for operation, the board may extend, and fix and determine anew\nthe time within which such railroad shall be completed, but such\nextension of time shall not be for a longer period than that originally\nallowed by law for the completion thereof. If the board shall have\ndetermined that any portion of the route theretofore located should be\nallowed to be abandoned, with or without a change or relocation thereof\nor any part thereof, and with or without extension, or if the board\nshall have extended the time within which such railroad shall be\ncompleted, the board shall make a report in writing in accordance with\nthe determination so made, describing the portion of the route, if any\nthere be, as so fixed, determined and located anew, and the part, if any\nthere be, of the route allowed to be abandoned, and stating the period\nof time, if any, by the board fixed and determined within which such\ncorporation shall construct and complete the railroad theretofore\nauthorized or by it authorized to be constructed, and prescribing that a\nfailure by the corporation, its successors or assigns, to complete it\nwithin the time, if any, so limited, shall work a forfeiture to the\nsupervisors of the county if no part of the road is within a city, or in\nany city, to such city, of the rights and franchises of such corporation\nwith respect to that portion of the route so fixed, determined and\nlocated anew, and with respect to the then authorized extension or\nextensions, if any there be of said route, upon which a railroad shall\nnot be constructed within the time so limited; but the time, if any,\nunavoidably consumed by the pendency of legal proceedings, shall not be\ndeemed a part of any period of time limited in this article, and any\nrecital of any forfeiture of any of the rights or franchises prescribed\nby any commissioners heretofore appointed, to be to the mayor, aldermen\nand commonalty of the city of New York, shall be as effectual for any\nand all purposes as if such forfeiture had been in terms recited to be\nto the board of supervisors of the county of New York. Such report shall\nbe signed in duplicate by at least a majority of the then members of the\nboard, and there shall be thereto annexed the survey and map as\nhereinbefore directed, showing the line and location of each and all the\nroutes, with or without the extension or extensions, as fixed,\ndetermined and located, and showing also the parts or part, if any there\nshall be, of the route or routes as theretofore fixed, determined and\nlocated, but by the board allowed to be abandoned. Within ten days\nafter so signing such report the board shall cause the same to be filed\nin the office of the secretary of state, and the duplicate thereof in\nthe office of the clerk of the county wherein such railroad shall be\nlocated; and thereupon the corporation making such application, its\nsuccessors or assigns, is and shall be authorized to construct, maintain\nand operate a steam railroad for the transportation of passengers, mail\nand freight, upon the route or routes so fixed, determined and located,\nand in said report described, but the construction or operation of a\nrailroad upon any new location or selection of route is not and shall\nnot be thus authorized except upon the condition that the consent of the\nowners of one-half in value of the property bounded on, and the consent\nalso of the local authorities having control of that portion of a street\nor highway upon which it is proposed to construct or operate such\nrailroad be first obtained, or in case the consent of such property\nowners cannot be obtained, that the determination of three\ncommissioners, to be upon application appointed by the appellate\ndivision of the supreme court in the department in which such railroad\nis proposed to be constructed, be given after a hearing of all parties\ninterested that such railroad ought to be constructed or operated, which\ndetermination, confirmed by the court, may be taken in lieu of the\nconsent of the property owners. Such corporation is and the successors\nand assigns thereof shall be authorized to maintain and operate all the\nrailroads and the appurtenances thereof by it or them theretofore\nconstructed upon any portion of a route or routes which shall have been\nlocated by commissioners under this article, and to complete within the\ntime in and by such report so extended, fixed and determined anew, and\nthereafter to maintain and operate, the railroad and the appurtenances,\nupon so much of the route or routes theretofore fixed, determined and\nlocated as shall not have been so authorized and required to be\nabandoned, and with the same rights and effect, in all respects, as if\nsuch extended period of time had been originally fixed and determined,\nand in the original certificate of incorporation of such corporation\nrecited, for completing such railroad and putting it in operation. The\nother terms and conditions in and by such certificate mentioned and\nprescribed, except as the same are hereinbefore modified or may be\nmodified by the board as hereinbefore authorized, shall apply to the\nrailroad herein authorized to be constructed and operated upon the route\nor routes as so changed, fixed, determined and located, with the same\nforce and effect as if such route or routes, as finally so changed and\nlocated, had been in and by such articles or certificates themselves\nprescribed. If a new location or extension of routes shall be fixed and\ndetermined by commissioners who shall have been appointed by the court\npursuant to this section, they shall also ascertain and determine the\naggregate pecuniary damages arising from the diminution of value of the\nproperty bounded on that portion of the street or highway upon the line\nof such new location or extension and of each parcel of real property so\nbounded, and their proceedings thereupon shall be conducted in the same\nmanner and upon the like notice as the proceedings for that purpose\nbefore the commissioners specified in section two hundred and\ntwenty-five and they shall make to the supreme court the report required\nby section two hundred and thirty-three, and thereupon the same\nproceedings shall be had as are provided for in such last named section.\nEach commissioner shall be paid for his services at the rate of ten\ndollars per day for each day of actual services as such commissioner,\nand all reasonable expenses incurred by him in or about any of the\nmatters referred to such board, to be paid by the corporation making the\napplication so heard and determined. No corporation shall be authorized\nunder this section to extend, abandon or change the location of its\nroute, or any part thereof, where the greater portion of the route or\nroutes is or shall be in that portion of the city of New York south or\nwest of Harlem river, or of any route or part thereof in the borough of\nBrooklyn or county of Kings, or to construct, extend, abandon or change\nthe location of any railroad or route for a railroad over, under,\nthrough or across any street, avenues, place or lands south of One\nHundred and Twenty-eighth street or west of Third avenue in that portion\nof the city of New York south or west of Harlem river, or where a\nrailroad might not by law be constructed, or was not by law authorized\nto be by a board of commissioners located on the fifth day of June,\neighteen hundred and eighty-eight.\n